Must the highest legal officer in the land be a lawyer? Surprisingly, the answer is no.
Recently, the B.C. Court of Appeal dismissed an appeal from a decision of the B.C. Supreme Court that held that the appointment of a non-lawyer Attorney General (the Honourable Shirley Bond) did not breach that province's Legal Profession Act. In Askin v. Law Society of British Columbia, 2012 BCSC 895, Madam Justice Stromberg-Stein held that "the Legal Profession Act cannot be read in a manner which limits the Lieutenant Governor's absolute and unfettered right to appoint members to the Executive Council and assign portfolios, including that of the Attorney General."
One must admit that the petitioner had a point. It seems strange that the occupant of the highest legal office of the province could be a non-lawyer. It seems strange further still that this person is charged by statute with many important legal responsibilities, including acting as the official legal adviser to the Lieutenant Governor and to the Cabinet.
But while these high legal responsibilities would seem to require legal training, if not significant legal experience, they do not.
Madam Justice Stromberg-Stein continued: "To conclude that only persons entitled to practice law qualify for the appointment as Attorney General would impermissibly constrain the Crown prerogative of ministerial appointment exercised by the Lieutenant Governor and the Lieutenant Governor in Council under ss. 9(1) and 9(2) of the Constitution Act."
In short, the Premier (or Prime Minister) can appoint whomever she (or he) wants as Attorney General, lawyer or not.
One might dismiss the existence of a non-lawyer AG as an anomaly - a freak of the legal world akin to a white tiger. However, it is not quite so easy to do so. Ms. Bond is at least the third non-lawyer to hold the post of Attorney General in British Columbia (the others were the Hon. Colin Gabelmann, 1991-95 and the Hon. Russ Fraser, 1990-91).
Well maybe non-lawyer AGs are only found in my wacky home province of British Columbia like white tigers with Siegfried and Roy in Las Vegas?
Not exactly. Other provinces have similarly had non-lawyer Attorneys-General.
Nova Scotia has had a number of non-lawyer Attorneys General. The current Attorney General, the Hon. Ross Landry, was a career RCMP officer who received his law degree but does not appear to practice law (although he is an honorary member of the Nova Scotia Barristers Society). And the Attorney General of Prince Edward Island, the Hon. Janice Sherry, is neither a barrister nor a solicitor. So wait: 30% of the provincial Attorneys General are not practicing lawyers?
And this is not a new phenomenon. Other provinces have also had "laymen" (one of the dumbest words in the English language which should be stricken from the record) as Attorneys General, including Ontario where Marion Boyd served in that office from 1993-95 and has remained very active with the Law Society of Upper Canada as a lay bencher.
What's going on here? Why isn't anyone in the legal profession talking about this?
I think members of the legal profession prefer to treat non-lawyer Attorneys General as quaint anomalies. I believe that this is because the existence - and some would say the success - of non-lawyers in the highest legal office challenges some of the most fundamental assertions of the Canadian legal system, including the following:
1. Lawyers' monopoly over the provision of legal services. We assert that only lawyers can provide legal advice. The existence of non-lawyer legal advisors to the Crown fundamental threatens this assertion. It is rather strange that we allow non-lawyers to provide legal advice at the highest levels -- to cabinets, premiers and even to Governors General or Lieutenant Governors. Yet we do not allow non-lawyers to provide run of the mill legal advice to ordinary Canadians.
2. Self-regulation. The bar often asserts that independence of the bar requires self-regulation. This claim is undermined by the existence of a non-lawyer in the top provincial legal job who (a) effectively instructs and oversees the conduct of the largest group of lawyers in the province; (b) has privileged status under Law
Society regulations; and (c) is responsible for Law Society legislation.
3. ABS / MDP. Law Societies generally do not allow lawyers to practice with non-lawyers. Ontario allows MDPs so long as lawyers have control. A non-lawyer AG is exactly the opposite: a sort of MDP where the boss is a non-lawyer and everyone else is a lawyer.
4. Solicitor-Client Privilege. How does this apply to a non-lawyer AG? I will tackle this issue in a forthcoming column.
The non-lawyer Attorney General is the white tiger of the legal profession. But the bar would be wise not to treat it as a cuddly pet because it has the real potential to maul some of the sacred limbs of the legal profession.
This post originally appeared on Slaw, Canada's online legal magazine.